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,

[1] . . .

[2] (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.

Court Information

Court File No.: C71285/14A1

Date: November 20, 2014

Ontario Court of Justice

Re: Catholic Children's Aid Society of Toronto – Applicant

T.A.R. - Respondent (mother)

M.DeA. - Respondent (father)

O. and J. DeA. – Respondents (paternal grandparents)

Before: Justice Roselyn Zisman

Counsel:

Rachel Buhler - for Applicant
Roger Rowe - for Respondent mother
Respondent father - self-represented
Respondent paternal grandparents – self-represented

Heard On: November 13, 2014

Endorsement on Temporary Motion

Introduction

[1] The Catholic Children's Aid Society ("society") filed an Early Status Review Application and brought a motion, pursuant to section 65(1)(a) of the Child and Family Services Act, to vary the order of Justice Brownstone on May 23, 2014 placing the child, J. DeA. born […], 2004 in the care and custody of his mother for six months on terms and conditions to now place the child in the temporary care and custody of his paternal grandparents subject to terms and conditions and that the mother's access be in the discretion of the society.

[2] The father supports the society's motion and the mother opposes it. The society relies on its Notice of Motion and supporting affidavit of the society worker, Martha Doctor. The mother relies on her affidavit sworn on November 7, 2014. The society and mother's counsel both referred to the original Protection Application and the several Status Review Applications by way of background.

Litigation History

[3] The society commenced a Protection Application on October 9, 2012 due to concerns about the mother's alcohol abuse, the child's exposure to domestic violence between the mother and the father and concerns about the mother's ability to meet the needs of the child. At the time the child had been in the care of the paternal grandparents since June 2012. A without prejudice order was made on October 9, 2012 placing the child in the care of the paternal grandparents. All access arrangements were to be approved by the society.

[4] On March 7, 2013 the parties entered into final order for a supervision order placing the child with the paternal grandparents for four months. A finding of need of protection was made pursuant to sections 37(2)(l) based on a Statement of Agreed Facts that included the mother acknowledging that the mother binged drinks to the point of intoxication but that the mother had completed an inpatient treatment program and was attending an aftercare program.

[5] On the Status Review Application returnable on July 3, 2013, the parties consenting to an order placing the child in the care of the mother subject to terms and conditions for six months. On December 18, 2013 on consent a further order was made keeping the child in the care of the mother for a further six months on terms and conditions.

[6] A further Status Review Application was returnable on May 5, 2014 requesting a further six month supervision order continuing the child's placement with the mother. The ongoing supervision was requested because of concerns about the mother's alcohol use and use of cocaine, her need to attend for individual counselling, the need for ongoing counselling for the child. Further, the mother had breached the terms of the supervision order by mother by permitting access to the child by her boyfriend L.N. and by failing to seek pre-approval for overnight arrangements for the child. A Statement of Agreed Facts was filed on May 23, 2014 for a further six months supervision order with terms that included the mother participate in alcohol and drug testing including a hair strand test, that the mother ensure the child attends school regularly and on time and that he attends and completes his counselling and that the mother attends and completes her individual counselling.

[7] The society filed an Early Status Review Application based on the following concerns:

a) On April 11th, the mother had a very emotional discussion with the worker expressing concerns about her drinking and that her harm reduction program was not working but she was afraid that she did not have the strength for total abstinence and they discussed the benefit of residential treatment

b) The worker attended at the home that day for a scheduled appointment, she observed the child arriving home and being distraught as his mother, who usually waits for him in the lobby, was not there and he had no key. Despite several attempts to reach the mother by telephone and knocking on the door, the child was taken to his paternal grandparents' home. The child disclosed that this was not the first time this had happened but usually the mother answered the door. The worker was eventually able to reach the mother who maintained she had fallen asleep as she was not feeling well. The mother appeared to be under the influence of alcohol according to the worker. The mother admitted having been drinking the night before but after the child was asleep. The mother agreed to accompany the worker to have an alcohol screen and the child was returned home with a safety plan in place;

c) On April 22 and 23, the society received anonymous calls regarding the mother's alcohol consumption and the quality of her care of the child. The concerns about the quality of care were not verified but concerns about alcohol use were verified as the mother admitted she had been drinking more than she should but maintained that it was not impacting her care of the child;

d) During an interview with the child about missing two days of school that week, he advised that on one of the days his mother slept in and on the other day he was ill. He also advised that his mother sleeps a lot and sometimes during the day and he plays video games when she is sleeping;

e) The child disclosed that the mother does not drink in his presence but she has been hung over in his presence and that he knows when she is hung over by the way she speaks. He disclosed that his mother only drinks when he goes to his grandparents' home and he makes sure she is with friends so she is safe when she drinks;

f) During the months of May and June the child often stayed with his paternal grandparents' as the mother and her boyfriend were dealing with his immigration issues. He was subsequently deported;

g) The child's teacher disclosed that another parent told her that she was concerned about the mother's drinking and that in the past the mother had gone to extreme measures to manipulate her past alcohol/drug screens;

h) In August the society was advised by the mother's counsellor at Jean Tweed that her file had been closed due to inconsistent attendance and the mother advised that she had stopped attending as she did not feel the counselling was useful. But the mother told the worker that she did feel she needed more support as she was finding it difficult to maintain her goal of a total abstinence;

i) The child spent most of the summer with his paternal grandparents due to the mother's work schedule and her trip to Portugal to see her boyfriend. The mother told the worker that due to her work schedule she could not maintain the child's counselling sessions;

j) The mother reported that she has discussed her drinking with the child and he told her he wants her to stop and that he smells her breath when he comes home after being away a few days;

k) The mother delayed in arranging an optometrist appointment for the child and when she did so she left it for the paternal grandparents to fill the prescription;

l) The mother agreed to complete a hair strand test in August but did not attend and has still not attended for a test;

m) The child's teacher reported concerns that the child not taking his medication regularly that resulted in some behavioural issues and that he is much more focused when he takes his medications. The teacher reported that on one occasion when she believed the child had not taken his medication, she spoke to the mother who told her she left it up to the child to take his medication;

n) In August the paternal grandparents advised that they would be moving out of their current area and would not be able to assist the mother in caring for the child, including transporting him to and from school. The child stated that he was afraid that his grandparents were moving because he was scared that his mother would not be able to get him to school;

o) On the day the mother returned from Portugal, the worker spoke to her on the telephone and as appeared to be under the influence determined that she would not allow the child to be returned to the mothers care until they met. The child disclosed that he had spoken to the mother that day and he had not understood anything she said and he was afraid for her well-being;

p) The paternal grandmother advised the worker that when the child spoke to his mother she had stayed on the line and that the mother was intoxicated and told the child that she was going to kill herself and go to heaven to see Jesus and his Uncle Danny. This was very traumatic for the child as he has found his uncle deceased. The child started to cry and pleaded for his mother not to kill herself; and

q) The child asked to speak to the worker several days later and asked if she had told his mother that she could no longer see him. The worker told the child this was not true and the child told her that the mother had told him that she had taken him away from her. The child was extremely worried that if his mother finds out what he said she would be angry at him and she has told him he has a big mouth.

The Legal Test

[8] Subsection 65(1)(a) of the Child and Family Services Act provides that:

Where an application is made for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order

[9] As this is a motion, in the context of a Status Review Application, for a temporary care and custody order pending trial, the applicable subsection is 64(8) of the Child and Family Services Act that provides:

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 that court is satisfied that the child's best interests require a change in the child's care and custody.

[10] The proper test to be applied in a Status Review Application is the "best interests" test. The criteria in section 37(3) of the Child and Family Services Act are therefore to be considered.[1]

[11] The best interests test creates a strong presumption in favour of maintaining the status quo pending trial as there is a presumption that the original order is correct. However, this presumption is rebuttable if the party seeking to change the order can establish that there are relevant circumstances that require such a change.[2]

[12] Although subsection 65(1) of the Child and Family Services Act does not state that the moving party must demonstrate that there has been a material change in circumstances, it is well accepted that this is the threshold test as it is consistent with the statutory scheme of the legislation as it recognizes the importance of stability and continuity for children is desirable.[3]

[13] Therefore, in this case, the onus is on the society to prove on a balance of probabilities that there has been a material change in circumstances that in the child's best interest requires a change in care of the child, prior to and without the benefit of a trial.

Discussion

[14] The mother generally denies that she has been drinking to excess and denies the comments attributed to her by the worker and the child. She deposes that she has scheduled an assessment for outpatient treatment at the Centre for Addiction and Mental Health and that she has arranged for counselling for herself with the same counsellor that sees the child.

[15] The mother denies that she has not been available for the child and states that she has a friend take him to school and she is home when he arrives. She did not specifically address the incident when the worker found the child in the lobby alone and the mother could not be reached.

[16] The mother states that she was going on her trip to Portugal in August and so could not attend for a hair strand test and then deposes that since her return in September she has not had the time to arrange for another test as requested by the society.

[17] The mother denies that she told the worker that she was drinking and having trouble maintaining a total abstinence goal. The mother blames the comments about her drinking made by an anonymous source to the teacher as a parent with a vendetta against her. I place no weight on the anonymous report made by a parent to the teacher given the double hearsay nature of the allegation. However, on a threshold basis I am prepared to accept the worker's observations of the mother and accept the statements about drinking that the worker deposes were made to her by the mother.

[18] The mother provides a list of community members that provide her and the child with support and assistance.

[19] Based on the evidence I find that the society has met its onus to support that a change in the child's placement is in his best interests.

[20] I find that the child should be placed in the care of his paternal grandparents based on the following findings and concerns:

a) there is ample evidence to support that the mother's harm reduction plan regarding her use of alcohol has not been effective;

b) the mother has just arranged for an assessment to address her alcohol issues and is just in the process of arranging counselling for herself;

c) the mother's ability to care for child has been impacted by her drinking as she has not been available to meet him after school on more than one occasion, she has not been able to ensure that he attends school regularly and has not been able to ensure that his medical needs are met promptly;

d) the mother has not been able to ensure that the child attends regularly and consistently for ongoing counselling to address his anxiety and attachment difficulties;

e) the mother is not meeting the child's emotional needs due to her drinking. A child who is just turning 10 years old should not have to worry about his mother being safe when she is drinking or feeling compelled to smell her breath to see if she is drinking or be aware of his mother having a hangover. The mother's inappropriate discussions with the child have caused him great anxiety and worry. I accept the child's version of those discussions as there is no reason the child would lie to the worker and the comments were corroborated by the paternal grandmother; and

f) the paternal grandparents have been able to provide a safe place for the child and to assist the mother for extended period of time when she is unable to care for the child. Since the grandparents have moved that assistance is no longer available and based on the history of this litigation the mother has not been able to meet the child's needs without their assistance. Although the mother in her affidavit provided a list of friends and community members that have assisted her or who can assist in the future, none of these people filed affidavits on this motion and there is no evidence to substantiate they have assisted in any meaningful way in the past or an ability to assess their capabilities to assist in the future.

Order

[21] There will be an order varying the order of May 23, 2014 as follows:

The child, J. DeA. born […], 2004 is placed in the temporary care and custody of his paternal grandparents, O. and J. DeA. subject to the supervision of the Society on the terms and conditions in paragraphs 1(a) to (f) the Consent filed and executed by them and subject to the terms and conditions set out in paragraph 1(a) to (i) of the Notice of Motion;
Access to the child by the mother, T.R. shall be in the discretion of the society, including supervision thereof taking into consideration the wishes of the child.
The Applicant Catholic Children's Aid Society of Toronto shall prepare this Order and approval of the Respondents as to form and content shall be dispensed.

Justice Roselyn Zisman

Date: November 20, 2014